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Full Text of Case - Undocumented workers entitled to backpay under NLRA (5-4).

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc September 27, 2000

Decided January 16, 2001

No. 98-1570

Hoffman Plastic Compounds, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Maurice Baskin argued the cause for petitioner. With him

on the briefs was Ryan D. McCortney.

Sharon Block, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Leonard R. Page, General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Fred L. Cornnell, Jr.,

Attorney. Linda R. Sher, Associate General Counsel, and

John D. Burgoyne, Deputy Associate General Counsel, en-

tered appearances.

James B. Coppess argued the cause for amicus curiae

American Federation of Labor and Congress of Industrial

Organizations. With him on the brief were Jonathan P.

Hiatt and Laurence Gold.

Before: Edwards, Chief Judge, Williams, Ginsburg,

Sentelle, Henderson, Randolph, Rogers, Tatel, Garland,

Circuit Judges, and Silberman, Senior Circuit Judge.*

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle, in

which Circuit Judges Ginsburg, Henderson, and Randolph

join.

Dissenting opinion filed by Circuit Judge Ginsburg.

Tatel, Circuit Judge: Petitioner illegally fired several

workers in retaliation for their attempts to organize a union.

Finding multiple unfair labor practices, the National Labor

Relations Board ordered its traditional remedy, reinstatement

with backpay, for all discharged employees. When the Board

learned that one discriminatee was an undocumented alien, it

denied reinstatement and terminated backpay as of the date

petitioner discovered the discriminatee's lack of documenta-

tion. Challenging even this reduced award, petitioner argues

that both Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and

the Immigration Reform and Control Act of 1986 ("IRCA"),

100 Stat. 3359, bar awards of any backpay to undocumented

discriminatees. We disagree. Properly understood, Sure-

Tan supports backpay awards to undocumented discrimina-

tees so long as the awards reflect the discriminatees' actual

losses. Moreover, because nothing in IRCA prohibits such

limited backpay awards, and because the Board fashioned the

award in this case not just to fulfill the objectives of the

National Labor Relations Act, but also to avoid violations of

__________

* Senior Judge Silberman was in regular active service at the

time of oral argument. Judge Garland took no part in this matter.

IRCA, the award falls within the Board's broad remedial

discretion. We therefore deny the petition for review and

grant the cross-application for enforcement.

I

Petitioner Hoffman Plastic Compounds, Inc., manufactures

custom-formulated polyvinylchloride pellets for use by cus-

tomers who produce pharmaceutical, construction, and house-

hold products. In May 1998, JosE Castro began working in

Hoffman's production plant earning minimum wage as a

compounder, an operator of large blending machines that mix

and cook plastic formulas ordered by customers. When the

United Rubber, Cork, Linoleum, and Plastic Workers of

America, AFL-CIO began an organizing drive at Hoffman's

factory, Castro, along with several other employees, distribut-

ed union authorization cards to coworkers. Following what

the Board later described as "coercive and restraining" inter-

rogation of union supporters, Hoffman laid off all employees

who had engaged in organizing activities, including Castro.

Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

After one discharged employee filed charges with the

Board, an Administrative Law Judge found that the company

had engaged in multiple unfair labor practices. The Board

adopted the ALJ's findings, concluding not only that Hoffman

had unlawfully interrogated employees about their union ac-

tivities and sympathies, but also that "in order to rid itself of

known union supporters, [the company] discriminatorily se-

lected union adherents for layoff" in violation of sections

8(a)(1) and (3) of the NLRA, 29 U.S.C. s 158(a)(1), (3).

Hoffman Plastic, 306 N.L.R.B. at 100. The Board ordered

Hoffman to cease and desist from such unfair labor practices,

to post a notice at the work site, and to reinstate and make

whole the union supporters it had illegally fired.

When a dispute arose as to the proper computation of

backpay, a compliance hearing was held before another ALJ.

Castro appeared at the hearing, testifying through an inter-

preter. When Hoffman's attorney began questioning Castro

about his citizenship, the Board's General Counsel objected.

The ALJ sustained the objection, but not before Castro had

stated that he was a Mexican national and that the birth

certificate he had used to gain employment at Hoffman was

borrowed from a friend. On the basis of this admission, the

ALJ recommended neither reinstatement nor backpay. In

reaching this conclusion, the ALJ relied on IRCA, which

makes it unlawful for employers to knowingly hire undocu-

mented workers and for employees to use fraudulent docu-

ments to establish employment eligibility. See Hoffman

Plastic Compounds, Inc., 314 N.L.R.B. 683, 685 (1994).

Expressly considering the policies of both IRCA and the

NLRA, the Board agreed with the ALJ that reinstatement of

an undocumented discriminatee would be inappropriate. See

326 N.L.R.B. No. 86, 1998 WL 663933, at *2-4 (Sept. 23,

1998). As the Board had explained in an earlier case, order-

ing reinstatement would force an employer to violate IRCA's

prohibition against knowingly hiring undocumented aliens.

See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 320

N.L.R.B. 408, 415 (1995). The Board disagreed with the ALJ

that IRCA prevented any award of backpay. To account for

IRCA's prohibition on the fraudulent use of documents, how-

ever, the Board applied its well-established after-acquired

evidence rule and ended backpay liability the moment Hoff-

man became aware of Castro's undocumented status. Hoff-

man Plastic, 1998 WL 663933 at *3-4.

Hoffman petitioned for review of the Board's order. The

company did not challenge the Board's finding that it commit-

ted unfair labor practices, including the illegal discharge of

known union organizers. It contested only Castro's limited

backpay award, arguing primarily that awards of backpay to

undocumented discriminatees are barred by Sure-Tan, Inc. v.

NLRB, 467 U.S. 883 (1984), and, in the alternative, by IRCA.

Cross-applying for enforcement, the NLRB, supported by

amicus AFL-CIO, responded that the limited backpay award

runs afoul of neither Sure-Tan nor IRCA and falls well within

the Board's remedial discretion.

A divided panel of this court resolved all issues in the

Board's favor. Hoffman Plastic Compounds, Inc. v. NLRB,

208 F.3d 229 (D.C. Cir. 2000). We then granted Hoffman's

petition for rehearing en banc and vacated the panel opinion.

Having now heard Hoffman's claims en banc, we again deny

the petition for review and grant the Board's cross-application

for enforcement.

II

We begin with Hoffman's argument, embraced by our

dissenting colleagues, that this case is controlled by a single

sentence from Sure-Tan: "[I]n computing backpay, the em-

ployees must be deemed 'unavailable' for work (and the

accrual of backpay therefore tolled) during any period when

they were not lawfully entitled to be present and employed in

the United States." Sure-Tan, 467 U.S. at 903. This sen-

tence, Hoffman claims, "plainly prohibits" the NLRB from

awarding even limited backpay to undocumented workers

victimized by unfair labor practices. Read literally and di-

vorced from Sure-Tan's factual and legal context, the sen-

tence could well be interpreted to support that view. But the

Supreme Court has warned against "dissect[ing] the sen-

tences of the United States Reports as though they were the

United States Code." St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 515 (1993). And as we have said, "[t]he Court's

every word and sentence cannot be read in a vacuum; its

pronouncements must be read in light of the holding of the

case and to the degree possible, so as to be consistent with

the Court's apparent intentions and with other language in

the same opinion." Aka v. Washington Hosp. Ctr., 156 F.3d

1284, 1291 (D.C. Cir. 1998) (en banc).

Read in context, the Sure-Tan sentence does not bar

backpay to undocumented discriminatees. The Seventh Cir-

cuit originally crafted the sentence, which the Supreme Court

merely repeated, to deal with unique circumstances of Sure-

Tan not present in this case. Contested by neither party, the

restriction imposed by the sentence did not address an issue

in dispute before the Court; nor did it play any part in either

Sure-Tan's holding or reasoning. As such, the sentence is

hardly "considered dict[um]." Cf. Dissenting Op. at 7.

Moreover, extending the sentence beyond the facts of Sure-

Tan, as Hoffman urges, would conflict with the Court's

holding that an undocumented discriminatee is entitled to

backpay so long as it is appropriately tailored to the discrimi-

natee's actual loss.

The employer in Sure-Tan committed an unfair labor prac-

tice when, in retaliation for its employees' success in electing

a union, it alerted the Immigration and Naturalization Service

that some of its employees might be undocumented. Rather

than deport the workers, the INS allowed them to leave the

country voluntarily. "By the end of the day, all five employees

were on a bus ultimately bound for Mexico." Sure-Tan, 467

U.S. at 887. The Board ordered the traditional remedy of

reinstatement with backpay. Sure-Tan, 246 N.L.R.B. 788

(1979). Two members dissented, fearing that these remedies

could produce violations of the then-existing immigration law,

the Immigration and Nationality Act. Id. at 789-90. The

INA focused not on employment of undocumented workers--

that came later when Congress enacted IRCA--but rather on

"the terms and conditions of admission to the country."

Sure-Tan, 467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S.

351, 359 (1976)). Citing these prohibitions, the dissenters

would have limited the remedy to avoid "encourag[ing] a

discriminatee to reenter the country illegally." Sure-Tan,

246 N.L.R.B. at 789.

Echoing the dissenting members' concerns, the Seventh

Circuit "modif[ied the Board's] remedy in some aspects." See

NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603-06 (7th Cir. 1982).

The court allowed Sure-Tan to remind the discriminatees in

the reinstatement offer that without obtaining proper docu-

mentation they could not reenter the United States to reclaim

their jobs. Id. at 605-606. To reduce the appeal of illegal

reentry, the court also modified the order "to require rein-

statement only if the discriminatees are legally present and

legally free to be employed in this country when they offer

themselves for reinstatement." Id. at 606.

Eliminating still another incentive for illegal reentry, the

court added a clarification to the Board's backpay order, a

clarification that forms the basis for the sentence at issue in

this case: "[I]n computing backpay discriminatees will be

deemed unavailable for work during any period when not

lawfully entitled to be present and employed in the United

States." Id. This limitation, which was based on the Board's

standard practice of tolling backpay when discriminatees are

physically unavailable, see Local 512, Warehouse & Office

Worker's Union v. NLRB, 795 F.2d 705, 716 n.9 (9th Cir.

1986) ("Felbro") (citing 3 NLRB Casehandling Manual

ss 10,612, 10,656.9), including when out of the country, see

NLRB v. Hickory's Best, Inc., 267 N.L.R.B. 1274, 1277 (1983),

ensured that illegal reentry would not restart the accumula-

tion of backpay.

Though the Seventh Circuit believed that these restrictions

were needed to prevent violations of the INA, it worried that

"in the circumstances of this case"--the Sure-Tan discrimina-

tees had been out of the country since the company's viola-

tion--the restrictions might result in no backpay at all. See

Sure-Tan, 672 F.2d at 606. To solve this problem and to

"effectuate the policies of the [NLRA]," the court ordered the

employer to pay the discriminatees backpay for an "obviously

conjectural" six-month period. Id.

The Supreme Court began by emphasizing that neither

party challenged the "not lawfully entitled" restriction on

which Hoffman now relies. Sure-Tan had supported the

restriction throughout, Sure-Tan, 467 U.S. at 898 n.8, and

even the Board had come to accept it:

Conditioning the offers of reinstatement on the employ-

ees' legal reentry and deeming the employees "unavail-

able" during any period when they were not lawfully

present are requirements that were in fact imposed by

the Court of Appeals in this case, and hence fully accept-

ed by the Board.... The Board has clearly indicated its

agreement with these portions of the Court of Appeals'

remedial order by specifically noting that petitioners do

not challenge these parts of the order [and] by limiting

its own argument to the minimum backpay award issue

alone.

Id. at 903 n.12 (emphasis added); see also Del Rey Tortille-

ria, Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992)

(Cudahy, J., dissenting). Turning its attention to that limited

issue--the "minimum backpay award"--the Supreme Court

held that the Seventh Circuit had not only "exceeded its

narrow scope of review" by substituting its own judgment for

that of the Board, but also erred by not sufficiently tailoring

its remedy "to the actual, compensable injuries suffered by

the discharged employees." Sure-Tan, 467 U.S. at 900, 901.

Although agreeing with the Seventh Circuit that these re-

strictions would mean that the Sure-Tan discriminatees would

likely receive no backpay, id. at 903-04, the Court cautioned

that "the probable unavailability of the [NLRA's] more effec-

tive remedies in light of the practical workings of the immi-

gration laws, however, simply cannot justify the judicial arro-

gation of remedial authority not fairly encompassed within

the Act." Id. at 904. In reaching this conclusion, the Court

mentioned the "not lawfully entitled" restriction on backpay

simply to explain the Seventh Circuit's motive for imposing a

six-month minimum award. The additional sentence relied on

by our dissenting colleagues, see Dissenting Op. at 2, adds no

new restriction; it merely summarizes the Court's holding

that backpay awards must be tailored to the discriminatees'

individual circumstances as determined by the Board.

Not only does the sentence on which Hoffman relies thus

form no part of Sure-Tan's holding or reasoning, but contrary

to the company's claim, it presents no bar to awarding

backpay to undocumented discriminatees. As we explained

above, the Seventh Circuit crafted the restriction to ensure

that the Sure-Tan discriminatees who had left the country

would not reenter illegally to claim backpay. See supra at 6-

7. In so interpreting the restriction, we rely not on the

Seventh Circuit's intended meaning, cf. Dissenting Op. at 4,

but rather on the Supreme Court's expression of precisely the

same concern:

[A]s the Court of Appeals recognized, the implementation

of the Board's traditional remedies at the compliance

proceedings must be conditioned upon the employees'

legal readmittance to the United States. In devising

remedies for unfair labor practices, the Board is obliged

to take into account another equally important Congres-

sional objectiv[e]--to wit, the objective of deterring un-

authorized immigration that is embodied in the INA.

By conditioning the offers of reinstatement on the em-

ployees' legal reentry, a potential conflict with the INA is

thus avoided. Similarly, in computing backpay, the em-

ployees must be deemed "unavailable" for work (and the

accrual of backpay therefore tolled) during any period

when they were not lawfully entitled to be present and

employed in the United States.

Id. at 902-03 (internal quotation marks and citation omitted)

(emphasis added).

It is true, as Hoffman points out, that the words "not

lawfully entitled to be present and employed" sweep more

broadly than necessary to deter undocumented discriminatees

from reentering the country illegally. But reading these

words to impose an absolute bar to any award of backpay for

undocumented discriminatees not only ignores the fact that

the Seventh Circuit crafted the restriction to deal with the

precise problem it faced--undocumented discriminatees re-

turning to the country illegally to claim backpay--but also

conflicts with "other language" (our words in Aka, 156 F.3d at

1291) making it clear that undocumented discriminatees are

in fact entitled to backpay. Specifically, the Court "generally

approve[d of] the Board's original course of action in this case

by which it ordered the conventional remedy of reinstatement

and backpay," leaving calculation of the precise amount of

backpay until the compliance proceeding. Sure-Tan, 467 U.S.

at 902. The "main deficiency" in the Seventh Circuit's order,

the Court explained, was not that it awarded backpay to

undocumented discriminatees, but that the amount of back-

pay awarded was "develop[ed] in the total absence of any

record evidence as to the circumstances of individual employ-

ees," thus violating the "cardinal" proposition "that a backpay

remedy must be sufficiently tailored to expunge only the

actual, and not merely speculative, consequences of the un-

fair labor practices." Id. at 899-900 n.9, 900. The Court

continued:

[T]he Court of Appeals "estimated" an appropriate peri-

od of backpay without any evidence whatsoever as to the

period of time these particular employees might have

continued working before apprehension by the INS and

without affording petitioners any opportunity to provide

mitigating evidence. In the absence of relevant factual

information or adequate analysis, it is inappropriate for

us to conclude ... that the Court of Appeals had estimat-

ed the proper minimum backpay award "with a fair

degree of precision."

Id. at 901-02 n.11. If, as Hoffman argues, undocumented

discriminatees may never be awarded backpay, the Court

would not have mentioned "the proper minimum backpay

award" or "the period of time these particular employees

might have continued working." Nor would there have been

a need for more "relevant factual information or adequate

analysis," much less for a compliance proceeding to determine

the amount of backpay actually due. According to the dis-

sent, the compliance proceeding was intended only to deter-

mine whether the discriminatees had legally returned to the

country. See Dissenting Op. at 6-7. The Supreme Court

itself made clear, however, that such a hearing would deter-

mine "the period of time these particular employees might

have continued working before apprehension by the INS."

See Sure-Tan, 467 U.S. at 902 n.11.

Hoffman next argues that IRCA's subsequent adoption of

employer penalties for knowingly hiring undocumented aliens

extended the Sure-Tan sentence to all undocumented discri-

minatees, including those who, like Castro, never leave the

country. According to Hoffman, Castro now falls squarely

within the Sure-Tan sentence because he is no longer "legally

entitled to be ... employed." Had the sentence established a

general rule of law, we might agree. As we demonstrate

above, however, the sentence is neither general (it addressed

only the unique factual situation in Sure-Tan), nor a rule (it

played no part in either the Court's holding or reasoning).

The Court, moreover, did not consistently describe the limita-

tion in terms of employment eligibility. At one point, it

referred to the sentence as conditioning backpay merely on

"legal presence in this country"; elsewhere, it referred to

being "lawfully present." Id. at 898 n.8; id. at 903 n.12.

Two of the three Circuits that have addressed this issue

agree with our interpretation of Sure-Tan. In A.P.R.A. Fuel,

the Second Circuit held that Sure-Tan bars awards of back-

pay only to undocumented discriminatees who were unavail-

able for work because they were outside the country and

unable to lawfully reenter. See A.P.R.A. Fuel, 134 F.3d 50,

54-55 (2d Cir. 1997). Likewise, in Felbro, the Ninth Circuit

stated:

In Sure-Tan, the Supreme Court did not address the

issue whether undocumented workers remaining at work

in the United States throughout the backpay period are

entitled to backpay awards. Sure-Tan barred from

backpay only those undocumented workers who were

unavailable for work in the backpay period because they

were outside the United States without entry papers.

Felbro, 795 F.2d at 722. To be sure, in a later case also

upholding an award of backpay to undocumented workers, the

Ninth Circuit added a footnote speculating whether the enact-

ment of IRCA might "change[ ] the mix of policy consider-

ations underlying the case law which supports our conclusion

that undocumented employees may recover backpay." EEOC

v. Hacienda Hotel, 881 F.2d 1504, 1517 n.11 (9th Cir. 1989);

see also Rios v. Enterprise Ass'n Steamfitters, 860 F.2d 1168,

1172 n.2 (2d Cir. 1988) (noting, in a footnote, the passage of

IRCA, but "not decid[ing] the effect of this provision on

future claims"). Yet the Ninth Circuit and its district courts

have consistently reaffirmed that undocumented workers re-

main protected by labor and employment laws after IRCA

and have continued to award them backpay. See, e.g., NLRB

v. Kolkka, 170 F.3d 937 (9th Cir. 1999); Contreras v. Corint-

hian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053 (N.D.

Cal. 1998); Escobar v. Baker, 814 F. Supp. 1491, 1498 (W.D.

Wash. 1993); EEOC v. Tortilleria "La Mejor," 758 F. Supp.

585 (E.D. Cal. 1991). Only the Seventh Circuit has interpret-

ed Sure-Tan differently, though a strong dissent pointed out

that the panel and the Supreme Court

faced a significantly different scenario. In Sure-Tan, the

aliens in question were not only undocumented, they

were not in the country. They could not reenter for the

purpose of taking up employment without breaking the

law. This was the Court's concern in Sure-Tan (and the

panel's concern before it).

Del Rey Tortilleria, 976 F.2d at 1123-24 (Cudahy, J., dissent-

ing).

III

Hoffman argues that even if Sure-Tan does not bar back-

pay to undocumented discriminatees, IRCA does. Yet noth-

ing in IRCA directly bars such an award. As Hoffman itself

acknowledges, IRCA neither amends nor repeals the NLRA

or any other labor law. IRCA's legislative history, moreover,

shows that Congress did not intend the statute to limit the

NLRA even indirectly. The House Judiciary Committee

Report stated that no provision of IRCA should

be used to undermine or diminish in any way labor

protections in existing law, or to limit the powers of

federal or state labor relations boards, labor standards

agencies, or labor arbitrators to remedy unfair practices

committed against undocumented employees for exercis-

ing their rights before such agencies or for engaging in

activities protected by existing law. In particular, the

employer sanctions provisions are not intended to limit in

any way the scope of the term "employee" in Section 2(3)

of the [NLRA], as amended, or of the rights and protec-

tions stated in Sections 7 and 8 of that Act.

H.R. Rep. 99-682, pt. 1, at 58 (1986). The Judiciary Commit-

tee relied on Sure-Tan to support its view that continued

protection of undocumented workers under the NLRA is fully

consistent with IRCA's goals:

As the Supreme Court observed in Sure-Tan, application

of the NLRA [to undocumented workers] "helps to as-

sure that the wages and employment conditions of lawful

residents are not adversely affected by the competition of

illegal alien employees who are not subject to the stan-

dard terms of employment."

Id. (internal citation omitted). Echoing this view, the House

Education and Labor Committee Report stated that no provi-

sion of the law should

limit the powers of State or Federal labor standards

agencies such as the Occupational Safety and Health

Administration, the Wage and Hour Division of the De-

partment of Labor, the Equal Employment Opportunity

Commission, the National Labor Relations Board, or

Labor arbitrators, in conformity with existing law, to

remedy unfair practices committed against undocu-

mented employees for exercising their rights before such

agencies or for engaging in activities protected by these

agencies. To do otherwise would be counter-productive

of our intent to limit the hiring of undocumented employ-

ees and the depressing effect on working conditions

caused by their employment.

H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986) (emphasis added).

Absent a statutory bar to backpay for undocumented discri-

minatees, we turn to the alternative argument we understand

Hoffman to be making: that the Board's backpay award fails

to accommodate IRCA's goal of limiting the hiring of undocu-

mented workers. Two principles guide our consideration of

this issue. First, while the Board's formulation of remedies

for NLRA violations merits the highest level of deference, see

ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), its

interpretation of IRCA warrants no deference at all. See,

e.g., New York Shipping Ass'n v. Federal Maritime Comm'n,

854 F.2d 1338, 1365 (D.C. Cir. 1988) (agency interpretation of

a statute it does not administer is entitled to no deference).

Second, in enforcing the NLRA, the Board may not

ignore other and equally important Congressional objec-

tives. Frequently the entire scope of Congressional

purpose calls for careful accommodation of one statutory

scheme to another, and it is not too much to demand of

an administrative body that it undertake this accommo-

dation without excessive emphasis upon its immediate

task.

Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942). If

a conflict requires the Board "to accommodate the policies of

another statutory regime within the framework of the legisla-

tion it administers," it "must fully enforce the requirements of

its own statute, but must do so, insofar as possible, in a

manner that minimizes the impact of its actions on the

policies of the other statute." New York Shipping, 854 F.2d

at 1367.

[A]n agency, faced with alternative methods of effectuat-

ing the policies of the statute it administers, (1) must

engage in a careful analysis of the possible effects those

alternative courses of action may have on the functioning

and policies of other statutory regimes, with which a

conflict is claimed; and (2) must explain why the action

taken minimizes, to the extent possible, its intrusion into

policies that are more properly the province of another

agency or statutory regime. Id. at 1370.

The Board's first opportunity to consider whether and to

what extent traditional NLRA remedies might require modifi-

cation to account for IRCA's employer sanctions came in

A.P.R.A. Fuel. See 320 N.L.R.B. 408. Beginning with New

York Shipping's requirement that it "fully enforce the re-

quirements of its own statute," 854 F.2d at 1367, the Board,

citing Sure-Tan, explained why NLRA policy calls for back-

pay for undocumented discriminatees. 320 N.L.R.B. at 414.

Because "undocumented aliens are extremely reluctant to

complain to the employer or to any of the agencies charged

with enforcing workplace standards," they make easy targets

for an employer's "unprincipled effort to stave off ... union

representation." Id. at 414. Employers resisting unions

could simply fire undocumented workers who try to organize

and then raise "the unlawful immigration status of their

discharged employees in retaliation for protected activities";

employers might even "consider the penalties of IRCA a

reasonable expense more than offset by the savings of em-

ploying undocumented workers or the perceived benefits of

union avoidance." Id. at 415. The Board also found that

denying backpay would harm the collective bargaining rights

of authorized workers because "the continuous threat of

replacement with powerless and desperate undocumented

workers would certainly chill the American and authorized

alien workers' exercise of their Section 7 rights." Id. at 414.

We recognize that there may be different views on the

extent to which awarding backpay to undocumented discrimi-

natees reduces employer incentives to violate the NLRA. It

could be argued, for example, that employers would not likely

risk criminal penalties for knowingly hiring undocumented

workers simply to gain the increased leverage that would flow

from reduced remedies for unfair labor practices. But even if

this is true, employers who merely suspect their workers are

undocumented will still have reason to test the boundaries of

the NLRA. In the end, however, we need not resolve these

policy questions, for it is the Board that possesses expertise

in this area and it is to the Board that we owe deference. See

New York Shipping, 854 F.2d at 1364 (holding that courts

must defer to an agency "interpretation of its own organic

legislation" even where there are competing statutory

schemes). Indeed, the very existence of competing views

reinforces the need for reliance on the Board's experience.

We have the same reaction to Hoffman's argument that the

Board lacked authority to award backpay here because "none

of the 'parade of horribles' " the Board identified in A.P.R.A.

Fuel--including employer exploitation of workers' undocu-

mented status to chill union activity--"could have occurred in

this case." In order to take advantage of undocumented

workers, Hoffman claims, the employer must be aware of

their undocumented status, and "[i]t is beyond dispute" the

company did not "[know] that Castro was an undocumented

alien" at the time of the unfair labor practice. See Supp. Br.

for Pet'r at 14. According to the Board, however, denying

undocumented workers remedies for retaliation would chill

participation in union activities "regardless of whether the

employer knew of the undocumented worker's immigration

status." Supp. Br. for Resp. at 4. Hoffman provides no

reason for believing that the Board's position on this issue

represents an unreasonable interpretation of the NLRA.

Having explained its reasons for believing that NLRA

policy requires remedies for undocumented discriminatees,

the A.P.R.A. Fuel Board addressed its second New York

Shipping obligation: the accommodation of immigration poli-

cy. It began by observing that the NLRA and IRCA share

"virtually identical policy objectives with respect to the Amer-

ican workplace .... [W]e believe that we can best achieve

this mutuality of purpose and effect by vigorously enforcing

the NLRA, including providing traditional Board remedies,

with respect to all employees, to the extent that such enforce-

ment does not require or encourage unlawful conduct by

either employers or individuals." A.P.R.A. Fuel, 320

N.L.R.B. at 411. As the Board noted, Sure-Tan itself recog-

nized that preserving N.L.R.A. protection

eliminates the distinct economic advantage and thus the

incentive to employers of hiring illegal aliens in prefer-

ence to American citizens or alien employees working

lawfully. A reduction in the availability of jobs to undoc-

umented aliens, the Court found, would in turn discour-

age many aliens from entering the United States illegal-

ly.

Id. at 412. Citing the legislative history of IRCA quoted

above, the Board observed that a similar concern explained

Congress' insistence that the Act not "be used to undermine

or diminish in any way labor protections in existing law." Id.

at 413 (quoting H.R. Rep. 99-682, pt. 1, at 58); see also

A.P.R.A. Fuel, 134 F.3d at 56.

The Board then applied these NLRA and IRCA policies to

formulate a remedy for the specific unfair labor practices it

had found. To accomplish the NLRA's purposes, the Board

ordered reinstatement with backpay. But in order to avoid

conflict with IRCA's prohibition on knowingly hiring undocu-

mented aliens, it conditioned reinstatement on the discrimina-

tees' production of proper documents. A.P.R.A. Fuel, 320

N.L.R.B. at 415. It also ordered a limited period of backpay

to give the discriminatees the opportunity to obtain this

documentation.

In crafting a remedy for Castro, the Board relied on

A.P.R.A. Fuel's accommodation of NLRA and IRCA policies,

adding an additional limit to the remedy to account for the

fact that unlike A.P.R.A. Fuel, Hoffman had no knowledge of

Castro's illegal status when it hired him. Applying its after-

acquired evidence rule, the Board relieved Hoffman of its

reinstatement obligation altogether and cut off backpay at the

moment Castro's status was discovered. Hoffman Plastic,

314 N.L.R.B. at 685-86. Rather than "pay[ing] Castro for

doing nothing," Dissenting Op. at 1, the NLRB backpay

award compensates him for lost work "in aid of the Board's

authority to restrain violations" that harm all workers, see

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 220 (1938)--

and even that award was limited in recognition of Castro's

undocumented status. Because the Board had no need to

adopt A.P.R.A. Fuel's other remedy--the award of backpay

while the discriminatees attempted to obtain documentation--

the propriety of such an award is not before us.

Hoffman argues that the Board should have gone further

and denied Castro backpay altogether. As it points out,

IRCA criminalizes the false use of documents to obtain

employment. Yet the Board has long held that employee

misconduct does not completely immunize employers from

their backpay obligations, even when the discriminatees

would not have been hired but for their own wrongful con-

duct. Cf. Dissenting Op. at 1. In John Cuneo, for example,

the discriminatee falsified his job application. 298 N.L.R.B.

856 (1990). Instead of denying backpay altogether, as the

employer had urged, the Board limited backpay to the period

between the illegal discharge and the moment the employer

learned of the employee's falsification. In doing so, the

Board applied the after-acquired evidence rule to "balance

[its] responsibility to remedy the Respondent's unfair labor

practice against the public interest in not condoning [the

employee's] falsification of his employment application." Id.

at 856. The Supreme Court has itself used the after-acquired

evidence rule as a means of "deter[ring]" labor law violations

and "compensat[ing]" discriminatees, without disregarding

the "prerogatives" of employers. See McKennon v. Nashville

Banner Publishing Company, 513 U.S. 352, 362 (1995).

Even where, as here, the discriminatee violates the law, the

Supreme Court has refused to require the Board to deny all

backpay. In ABF Freight System v. NLRB, 510 U.S. 317

(1994), the discriminatee perjured himself during the compli-

ance proceeding--an act which, like Castro's fraudulent con-

duct, violated federal criminal law, see 18 U.S.C. s 1621, cited

in ABF Freight, 510 U.S. at 328-29. Although declaring that

"[f]alse testimony in a formal proceeding is intolerable," and

that "perjury should be severely sanctioned," id. at 323, the

Court rejected the company's argument that such behavior

should preclude the employee from receiving backpay:

[The company's] contention, though not inconsistent with

our appraisal of [the employee's] misconduct, raises coun-

tervailing concerns. Most important is Congress' deci-

sion to delegate to the Board the primary responsibility

for making remedial decisions that best effectuate the

policies of the Act when it has substantiated an unfair

labor practice.

Id. at 323-24. Writing separately to emphasize that the

Board's failure to adopt an unclean hands policy "undermines

and dishonors the courts," id. at 329, two concurring Justices

nevertheless agreed that the Board acted within its remedial

discretion. Id. at 326 (Kennedy, J., concurring), 329 (Scalia,

J., concurring in judgment).

Attempting to distinguish ABF Freight, the dissent says

that unlike the perjury statute, IRCA forbade Castro "from

obtaining a job." Dissenting Op. at 11 n.2. This misreads

IRCA. The statute makes it unlawful for employers to

knowingly hire undocumented aliens, 8 U.S.C. s 1324(a), and

for undocumented aliens to knowingly use false documents to

obtain jobs, 8 U.S.C. s 1324c(a)(3). IRCA does not explicitly

make it unlawful for undocumented aliens to work. True,

Castro could have been prosecuted for his fraud, but there

was nothing illegal about his actual employment. So when

the Board ordered limited backpay, it was not compensating

Castro for the loss of wages IRCA prohibited him from

earning. No matter how much Hoffman may deplore Cas-

tro's conduct, ABF Freight stands for the proposition that

balancing Castro's misconduct against Hoffman's is the

Board's responsibility, not ours. Had the Board ruled that

Castro's behavior disqualified him from any backpay, we

would have deferred to that decision as well. "Most impor-

tant," said ABF Freight, and most important here, "is Con-

gress' decision to delegate to the Board the primary responsi-

bility for making remedial decisions that best effectuate the

policies of the Act when it has substantiated an unfair labor

practice." 510 U.S. at 323-324.

Hoffman argues that the Board's accommodation of IRCA

fails for another reason: the remedy gives undocumented

discriminatees an incentive to remain in the country to contin-

ue accumulating backpay. It could also be argued that by

making U.S. jobs more attractive, awarding backpay to un-

documented discriminatees actually encourages illegal immi-

gration. Even if this is so, of course, the Board's providing a

purely compensatory remedy for unfair labor practices could

not make illegal immigration more attractive than it would be

if employers never committed unfair labor practices. Our

job, however, is not to resolve, or as the dissent puts it, to

"mediate" such issues, Dissenting Op. at 11. So long as the

Board neither misinterprets IRCA, see New York Shipping,

854 F.2d at 1365, "ignore[s]" the statute's policies, nor places

"excessive emphasis" on the NLRA, Southern Steamship, 316

U.S. at 47, we will not upset its precise accommodation of the

statutory schemes.

In sum, the NLRB has fully satisfied its New York Ship-

ping obligation. The Board crafted the limited backpay

remedy to avoid conflict with IRCA and to implement its

understanding of the purposes of both IRCA and the NLRA.

According to the Board, the limited backpay award reduces

employer incentives to prefer undocumented workers

(IRCA's goal), reinforces collective bargaining rights for all

workers (the NLRA's goal), and protects wages and working

conditions for authorized workers (the goal of both Acts).

Far from "ignor[ing] other and equally important Congres-

sional objectives," Southern Steamship, 316 U.S. at 47, the

Board, fully enforcing its own statute, carefully considered

IRCA and modified its traditional backpay remedy according-

ly. If, as Hoffman believes, undocumented discriminatees

should receive no backpay at all, its remedy lies in Congress,

not this court.

IV

Hoffman's final argument requires little discussion. The

company claims that "[b]y awarding undocumented aliens

backpay without any consideration regarding whether these

individuals can mitigate their damages, the Board treats

illegal aliens more favorably than documented workers and,

by doing so, the Board violates the equal protection clause of

the Fifth Amendment to the United States Constitution."

Brief for Pet'r at 33. Not only does Hoffman lack standing to

assert equal protection rights of third parties, see, e.g., Pow-

ers v. Ohio, 499 U.S. 400, 410-16 (1991), but it points to no

evidence that the Board applies a different mitigation stan-

dard to undocumented discriminatees. In any event, the

Board found that Castro both sought and obtained interim

employment, thus fulfilling his duty to mitigate. The Board

subtracted Castro's interim earnings of almost $4,000 from

his backpay award.

Finally, we think it worth pointing out that Hoffman itself

could have mitigated its backpay liability either by making

Castro a bona fide reinstatement offer--although it did offer

to rehire him, the Board found the offer inadequate--or by

complying promptly with the Board's reinstatement order

issued before Castro's undocumented status became known.

See Hoffman Plastic, 1998 WL 663933, at *2, *5. INS

regulations promulgated pursuant to IRCA expressly permit

reinstatement after unlawful discharge without requiring the

employer to reverify the employee's documents. 8 C.F.R.

s 274a.2(b)(viii)(A)(5).

V

The petition for review is denied and the cross-application

for enforcement is granted.

So ordered.

Sentelle, Circuit Judge, dissenting, with whom

Henderson and Randolph, Circuit Judges, join, and Gins-

burg, Circuit Judge, joins in part: In May of 1988, an

undocumented alien having illegally entered the United

States compounded his illegality when he fraudulently used

the name and birth certificate of Jose Castro to obtain

employment in the production plant of Hoffman Plastic. On

January 31, 1989, the company laid off a number of employ-

ees supportive of a union organizing effort, including the

employee who had falsely and illegally represented himself to

be Jose Castro. Thereafter, an administrative law judge,

following an evidentiary hearing, found that Hoffman had

engaged in unfair labor practices including the discriminatory

selection of union adherents in the layoffs which included the

illegal alien known as Castro.

After the disclosure of the undocumented worker's illegal

status and his fraudulent use of the birth certificate, the

administrative law judge recommended neither reinstatement

nor backpay. Hoffman Plastic Compounds, Inc., 314

N.L.R.B. 683 (1994). Upon review, the Board agreed with

the ALJ that reinstatement of an undocumented alien was

beyond its authority, but ordered backpay from the time of

the discriminatory discharge until the revelation of Castro's

undocumented status. Hoffman Plastic Compounds, Inc.,

326 N.L.R.B. 86, 1998 WL 663933 at *2-4. I would reverse

the Board and restore the ALJ's recommended result.

As it would be unlawful for Hoffman to employ the illegal

and pay him earned wages, it defies the logic of the Immigra-

tion Reform and Control Act of 1986 ("IRCA") that the

employer could be compelled by law to pay to the illegal

unearned wages which he could not lawfully earn and to

which he would have no claim but for his prior successful

fraud. If this were a case of first impression I would find it

simple. I would hold that by no theory of law or equity could

the federal government compel an employer to employ an

illegal alien to do nothing and pay him for doing nothing when

it could not lawfully employ him to work and pay him for

working. But this is not a case of first impression. The

Supreme Court has offered clear guidance which makes the

case an even easier one.

Analysis

In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the

Supreme Court reviewed a Seventh Circuit decision which

had modified an NLRB order applying the National Labor

Relations Act ("NLRA") to unfair labor practices committed

against undocumented aliens, see NLRB v. Sure-Tan, Inc.,

672 F.2d 592 (7th Cir. 1982). The High Court concluded that

the Circuit was correct in upholding the Board's position

"that undocumented aliens are 'employees' within the mean-

ing of [29 U.S.C. s 152(3)]." Sure-Tan, 467 U.S. at 891. The

Court reached this conclusion based on the deference owed

the Board in "defining the term 'employee,' " a task "that 'has

been assigned primarily to the agency created by Congress to

administer the Act.' " Id. at 891 (quoting NLRB v. Hearst

Publications, Inc., 322 U.S. 111, 130 (1944)); cf. Chevron

U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45 (1984). That said,

the Supreme Court nonetheless vacated the remedial portion

of the Seventh Circuit decision, which had ordered the Board

to award an irreducible minimum of six months backpay to

each of the affected employees in the face of the employees'

illegal entry and presence in the United States. In vacating

that portion of the Seventh Circuit decision, the Supreme

Court held, "[b]y directing the Board to impose a minimum

backpay award without regard to the employees' actual eco-

nomic losses or legal availability for work, the Court of

Appeals plainly exceeded its limited authority under the Act."

Sure-Tan, 467 U.S. at 904-05 (emphasis added). Based on

that italicized phrase, even if this were all the Supreme Court

had held on the question, I would conclude that Sure-Tan

counsels us to vacate the Board's decision overruling the

logical result reached by the administrative law judge. But,

the Supreme Court did not stop there.

The Supreme Court explicitly rejected the position taken

by the NLRB and the majority in today's decision when it

held, "[s]imilarly, in computing backpay, the employees must

be deemed 'unavailable' for work (and the accrual of backpay

therefore tolled) during any period when they were not

lawfully entitled to be present and employed in the United

States." Id. at 903. Thus, the Supreme Court very clearly

directed the appropriate response to the issue before the

Board in the present case and did so directly opposite the

disposition reached by the Board.

Read in context, the sentence speaks even more plainly:

Nonetheless, as the Court of Appeals recognized, the

implementation of the Board's traditional remedies at the

compliance proceedings must be conditioned upon the

employees' legal readmittance to the United States. In

devising remedies for unfair labor practices, the Board is

obliged to take into account another equally important

Congressional objective--to wit, the objective of deter-

ring unauthorized immigration that is embodied in the

INA [Immigration and Nationality Act]. By conditioning

the offers of reinstatement on the employees' legal reen-

try, a potential conflict with the INA is thus avoided.

Similarly, in computing backpay, the employees must be

deemed "unavailable" for work (and the accrual of back-

pay therefore tolled) during any period when they were

not lawfully entitled to be present and employed in the

United States.

Id. at 902-03 (emphasis added) (internal quotation marks and

citation omitted). The Supreme Court in a rather concise

paragraph makes it plain that it is dealing with the possibility

of affording a backpay remedy to illegal aliens. It further

makes it plain that such a remedy is not an option when the

employees are "deemed unavailable" for work and that such a

period of deemed unavailability occurs "during any period

when they were not lawfully entitled to be present and

employed in the United States."

Thus, the Supreme Court has definitively answered the

question before us. Castro was not lawfully entitled to be

present and employed in the United States. "[E]mployees

must be deemed 'unavailable' for work (and the accrual of

backpay therefore tolled)" when they are so situated. There-

fore, the award of backpay to Castro for that period must be

vacated. The majority advances a complex of theories for

avoiding what seems to be the plain import of the Supreme

Court's language in Sure-Tan. It starts by asserting that

"the Seventh Circuit crafted the restriction to deal with the

precise problem it faced," that is, "undocumented discrimina-

tees ... returning to the country illegally to claim their

backpay." Maj. Op. at 9. This analysis fails for two reasons.

First, we are not controlled by the origin of the instructive

sentence in the Seventh Circuit. The Supreme Court's con-

text is the governing context without regard to the original

coinage of the sentence. Cf. Anderson v. City of Bessemer

City, 470 U.S. 564, 572-73 (1984) (explaining that a district

judge's findings of fact and conclusions of law are the findings

and conclusions of that court despite the fact they are drawn

from the submissions of the parties). More importantly, the

Supreme Court's statement and its context give no indication

that it meant other than what it said: not simply that there is

some sort of unique bar applicable to illegal immigrants who

have left the country and might unlawfully return, but that

the same bar extends to all not lawfully entitled to be present

and employed in the United States.

Expanding on its first attempt at distinction, the majority

opines that when the Supreme Court "generally approve[d]

[of] the Board's original course of action in this case by which

it ordered the conventional remedy of reinstatement and

backpay" it somehow had created other language inconsistent

with the broad effect of the Court's language in the disputed

sentence. Maj. Op. at 9. The majority then relies on the

principle drawn from our decision in Aka v. Washington

Hospital Center, 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en

banc), that the Supreme "Court's every word and sentence

cannot be read in a vacuum; its pronouncements must be

read in light of the holding of the case and to the degree

possible, so as to be consistent with the Court's apparent

intent and with other language in the same opinion." (Em-

phasis supplied.) I have no quarrel with the principle; I

simply do not agree that its application in this case compels

the result reached by the majority. Indeed, I think it cuts to

the contrary. The language from the Sure-Tan decision cited

by the majority blesses in general terms the remedies of

reinstatement and backpay. It no more compels us to uphold

a backpay award to an employee not lawfully entitled to

employment than it compels us to uphold illegal reinstate-

ment of the same employee.

I suggest that the most important "other words" of the

Supreme Court are those immediately preceding the sentence

of contention. Those I have quoted above. That is, that "[i]n

devising remedies for unfair labor practices, the Board is

obliged to take into account ... the objective of deterring

unauthorized immigration that is embodied in the INA." As

the Supreme Court makes plain, there is no inherent conflict

between the labor statute and the INA. The conflict arises

only if the Board imposes remedies inconsistent with the

immigration law. That is, the conflict arises not between two

statutes, but between the remedial preferences of an adminis-

trative board and the higher authority of statutory enact-

ment. In fact, in the following paragraph, the Supreme

Court took care to note the "probable unavailability" of

backpay "in light of the practical workings of the immigration

laws." Sure-Tan, 467 U.S. at 904. Following this "other

language" of the Supreme Court, we should reach no other

conclusion than the reversal of what the Board has done in

the present case.

The majority further attempts to define the qualifying

language away from its apparent meaning by extracting from

a footnote the Supreme Court's observation that "the order's

main deficiency" was that it "was 'develop[ed] in the total

absence of any record evidence as to the circumstances of the

individual employees.' " Maj. Op. at 9 (quoting Sure-Tan, 467

U.S. at 900 n.9). Far from supporting the majority's proposi-

tion, that language of the Supreme Court read in context

actually supports the application of the eligibility language by

its terms. In footnote 9, the Supreme Court is discussing the

assertion of a dissenter that its review should be conducted

deferentially, as if the Board rather than the Court of Ap-

peals had developed the remedial order. Footnote 9 rejects

that proposition as not going to the defect in the order. The

language concerning the "total absence of any record evi-

dence" is wholly consistent with the proposition that if the

circumstances of an employee are that he was not lawfully

eligible to be present and employed in the United States, then

he does not receive a backpay recovery. Indeed, it is difficult

to see what else the Supreme Court could have been referring

to.

Today's majority opinion reads Sure-Tan as holding that

the fired employees were entitled to backpay because it

ordered a compliance proceeding "to determine the amount of

backpay actually due." Maj. Op. at 10. This assertion

misconstrues the posture of the case and the Court's holding.

Prior to the Court's decision in Sure-Tan, nobody had offered

any evidence concerning what happened to the employees

after they were deported. There was no question that the

employees left the United States, but there was no way to

know whether they had legally returned during the appropri-

ate backpay period. As the original NLRB opinion explained,

"[T]here is no evidence in the record that they have not

returned to the United States. The appropriate forum for

determining issues relating to their availability for work is a

compliance proceeding." Sure-Tan, Inc., 234 N.L.R.B. 1187,

1187 (1978), reh'rg denied, NLRB v. Sure-Tan, Inc., 677 F.2d

584 (7th Cir. 1982), aff'd in part, rev'd in part, 467 U.S. 883

(1984). Accordingly, the Supreme Court ordered that the

case be remanded for the NLRB to determine "whether any

of the discharged employees will be able ... to establish at

the compliance proceedings that they were lawfully available

for employment during the backpay period." Sure-Tan, 467

U.S. at 904. As the Court explained, "these compliance

proceedings provide the appropriate forum where the Board

and petitioners will be able to offer concrete evidence as to

the amounts of backpay, if any, to which the discharged

employees are individually entitled." Id. at 901 (emphasis

added).

The majority's interpretation is inconsistent with the Sure-

Tan Court's instruction and holding. The Court acknowl-

edged that the employees could be eligible for a backpay

remedy, but it stressed that when computing their actual

backpay awards, "the employees must be deemed 'unavail-

able' for work (and the accrual of backpay therefore tolled)

during any period when they were not lawfully entitled to be

present and employed in the United States," a factual issue

that had not been addressed. Id. at 903. In other words, the

Sure-Tan employees could be eligible for some backpay, but

only if (and only for periods in which) they could prove that

they were legally eligible to work in the United States.1

Unlike in Sure-Tan, in Hoffman's case there is no factual

question--Castro was lawfully unavailable throughout the

backpay period and, thus, consistent with the Court's instruc-

tion in Sure-Tan, not entitled to receive any backpay.

Finally, the majority argues that "the sentence ... form[s]

no part of Sure-Tan's holding...." Maj. Op. at 8. I take

this as being a tactful way of saying: "All right, the Supreme

Court said it, but it's just dicta, we don't have to go by it." I

find that singularly unimpressive. As we have observed in

the past, "because 'carefully considered language of the Su-

preme Court, even if technically dictum, generally must be

treated as authoritative,' this court cannot ignore the unmis-

takable import of [a Supreme Court decision's] analysis."

United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)

(citations omitted). Or, as we have elsewhere stated, "Su-

preme Court dicta tends to have somewhat greater force--

particularly when expressed so unequivocally." Bangor Hy-

droelectric Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

__________

1 The majority's assertion that the Supreme Court "made clear

... that [a compliance] hearing would determine 'the period of time

these particular employees might have continued working before

apprehension by the INS,' " Maj. Op. at 10 (quoting Sure-Tan, 467

U.S. at 902), is founded on a quotation uprooted from all context.

The Supreme Court phrase encompassed in the majority's text

comes from footnote 11 and was not in a discussion of what a future

compliance hearing would have determined, but rather a descriptive

passage setting forth what had transpired before the Supreme

Court's review. It was specifically offered to rebut the conclusion

of dissenting Justice Brennan "that the Court of Appeals had

estimated the proper minimum backpay award with a fair degree of

precision." Id. (quoting Sure-Tan, 467 U.S. at 909) (internal quotes

omitted).

In a different context, prior dissenters to an en banc

decision once lamented that the majority had discarded Su-

preme Court language "as mere 'dicta,' " saying, "In our view

it is quite presumptuous for members of an inferior court to

dismiss a decision of the Supreme Court in so cavalier a

manner." Hubbard v. Administrator, EPA, 982 F.2d 531,

540 (D.C. Cir. 1992) (en banc) (Edwards, J., dissenting). Just

so here. The Supreme Court has told us that "employees

must be deemed unavailable for work and the accrual of

backpay tolled during any period when they were not lawfully

entitled to be present and employed in the United States."

Indeed, this statement is more than dicta--rather, it was an

unequivocal instruction for the Board to follow in its compli-

ance proceeding on remand. I would not dismiss the Su-

preme Court's instruction in so cavalier a manner as does the

majority.

In the end, I submit the Supreme Court has made clear the

state of the law: "employees must be deemed 'unavailable' for

work (and the accrual of backpay therefore tolled) during any

period when they were not lawfully entitled to be present and

employed in the United States." Read in context, read out of

context, or read both ways and compared, the majority is left

with no way of dealing with the High Court's plain statement.

I invite the reader to review the phrase "not lawfully entitled

to be present and employed" in its original context. I further

suggest that contextual illumination for this sentence of the

High Court's opinion is supplied in the Court's analysis of the

Seventh Circuit decision that it was reversing. The High

Court described that decision as "[r]ecognizing that the dis-

charged employees would most likely not have been lawfully

available for employment and so would receive no backpay

award at all...." Sure-Tan, 467 U.S. at 890 (emphasis

added). Thus, the governing factor in determining eligibility

for backpay awards is not mere presence, but also the lawful

entitlement to be present and to be employed.

The majority's construction of the phrase "not lawfully

entitled to be present and employed in the United States" is

tantamount to rewriting it to read "not present, and not

lawfully entitled to be present, in the United States." In

effect, it adds the "not present" limitation and deletes the

"not lawfully entitled to be ... employed" requirement. That

rewriting of Sure-Tan leads the majority astray.

The erroneous construction of Sure-Tan endorsed by the

majority appears to have first occurred in Bevles Co. v.

Teamsters Local 986, 791 F.2d 1391, 1393 (9th Cir. 1986).

Before that time, even its critics believed that Sure-Tan

meant what it said. See Sure-Tan, 467 U.S. at 911 (Brennan,

J., dissenting) (criticizing the majority for holding that undoc-

umented aliens "are effectively deprived of any remedy");

Felbro, Inc., 274 N.L.R.B. 1268, 1269 (1985) (stating that the

undocumented aliens in Felbro, who had remained in the

country, would be affected by Sure-Tan); Local 512, Ware-

house & Office Workers' Union v. NLRB, 795 F.2d at 705,

725 (9th Cir. 1986) ("Felbro") (Beezer, J., dissenting in part);

Terry A. Bethel, Recent Labor Law Decisions of the Supreme

Court, 45 Md. L. Rev. 179, 196 (1986) ("Sure-Tan ... de-

prive[s] undocumented employees of any effective remedy for

unlawful discrimination...."); Lucinda M. Cardinal, Note,

Immigration Reform: Solving the "Problem" of the Illegal

Alien in the American Workforce, 7 Cardozo L. Rev. 223, 244

(1985) ("Sure-Tan mandates that illegal aliens do not receive

the remedies granted their legal coworkers."); John W. Saga-

ser, Note, Rights Without a Remedy--Illegal Aliens Under

the National Labor Relations Act, 27 B.C. L. Rev. 407, 452

(1986) ("By denying a minimum backpay award, the Court in

effect deprives illegal alien workers of any remedy."). In

Bevles, the Ninth Circuit was reviewing an arbitrator's award;

the issue was whether the arbitrator's decision showed a

"manifest disregard of the law," and the court was not

entitled to reverse simply erroneous legal conclusions. See

791 F.2d at 1392-93 & n.2. In not following Sure-Tan, the

court ignored the lawful presence requirement and consid-

ered whether the aliens in that case were lawfully entitled to

be employed. The Bevles court relied on the fact that--prior

to the passage of IRCA--it was not a criminal act for

employers to hire undocumented aliens. See id. at 1393.

The court also considered the effect of section 2805 of the

California Labor Code, which prohibited employers from

knowingly employing undocumented aliens if it would affect

lawful workers. Because an unreversed state court decision

had previously held section 2805 unconstitutional, the court

did not fault the arbitrator for disregarding it. See id. at

1393-94.

The focus on the lawful right to grant employment contin-

ued in Felbro. The Ninth Circuit there again relied on the

fact that it was not illegal for an employer to hire undocu-

mented aliens. Because the Sure-Tan employees could not

lawfully reenter the United States, the court noted that they

were "unavailable for work during the backpay period." Fel-

bro, 795 F.2d at 719. The court reasoned that being illegally

present in the United States did not create unavailability

because "[t]here is no provision 'in the INA making it unlaw-

ful for an employer to hire an alien who is present or working

in the United States without appropriate authorization.' " Id.

(quoting Sure-Tan, 467 U.S. at 892-93).

Since the passage of IRCA, both the Second and the Ninth

Circuits have registered concern over IRCA's effect on their

misguided attempts to limit Sure-Tan. In Rios v. Enterprise

Ass'n Steamfitters Local Union 638, 860 F.2d 1168 (2d Cir.

1988), the Second Circuit was careful to explain that recovery

was only permissible because the claimants were "available

for employment during the entire period covered by the

backpay order, since such employment would have violated no

immigration law." Id. at 1173. The court explicitly reserved

the question of whether IRCA would affect later claims. See

id. at 1172 n.2. The Ninth Circuit likewise has questioned

the viability of its Felbro decision after IRCA. See EEOC v.

Hacienda Hotel, 881 F.2d 1504, 1517-18 n.11 (9th Cir. 1989).

In a further Second Circuit case postdating the enactment of

IRCA, that circuit continued to follow its pre-enactment

precedent. See NLRB v. A.P.R.A. Fuel Oil Buyers Group,

Inc., 134 F.3d 50 (2d Cir. 1997). However, as Judge Jacobs

clearly demonstrated on dissent, without the slender reed of

the employer's legal capacity to hire undocumented aliens,

"an undocumented alien is not 'lawfully available for employ-

ment.' " Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan,

emphasis supplied by Judge Jacobs). As Judge Jacobs point-

ed out, the remedy of backpay to the alien ineligible for

employment "is foreclosed by Sure-Tan and IRCA." Id.

Like the Second Circuit in A.P.R.A. Fuel, the majority

today offers nothing that should lead us to believe that the

Supreme Court in Sure-Tan meant anything other than what

it said; and what it said disqualifies the illegal alien in this

case from an award of backpay.

In Sure-Tan the Court emphasized, "[W]e remain bound to

respect the directives of the INA as well as the NLRA and to

guard against judicial distortion of the statutory limits placed

by Congress on the Board's remedial authority." Sure-Tan,

467 U.S. at 904 n.13. Likewise, we are bound by the statuto-

ry directives of IRCA. Those directives prohibit employers

from hiring illegal aliens, see 8 U.S.C. s 1324a(a)(1)-(2), (e),

(f), and make it a crime for illegal aliens to obtain employ-

ment using "an identification document knowing (or having

reason to know) that the document was not issued lawfully for

the use of the possessor, [or] ... that the document is false,"

18 U.S.C. s 1546(b); see also 8 U.S.C. s 1324a(b)(c)(ii) (1988).

The majority opinion essentially ignores these directives,

instead pointing out that "employee misconduct" and an

employee's providing a "false excuse for tardiness" while

under oath, ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317,

324 (1994), do not necessarily bar backpay awards. These

points are inapposite--in this case, federal statutes clearly

prohibited Castro from even obtaining a job.2

Instead of confronting these statutes directly, the majority

chooses to mediate between statutory "goals." This Court's

divination of what were the legislature's goals should never be

allowed to trump what the legislature actually said. And

what the legislature has said is clear. Despite what this

Court's policy preferences may be, those preferences "cannot

justify the judicial arrogation of remedial authority not fairly

__________

2 This distinguishes the circumstance before us from that in ABF

Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994), relied upon by the

majority. See Maj. Op. at 18. The perjury statute provides for

criminal sanctions; it does not forbid a present or potential perjurer

from obtaining a job.

encompassed within the [NLRA]" as interpreted by the Su-

preme Court in Sure-Tan. 467 U.S. at 904.

Conclusion

The majority discusses at length the incentives and

counter-incentives of backpay awards to illegal aliens from

employers who could not legally employ them. While I do

not think that law-and-economics analysis to be controlling or

particularly helpful in this case, I would observe that it seems

at least passing strange to think that Congress would outlaw

the making of a particular type of contract between two types

of individuals (United States employers and undocumented

aliens) and then expect the courts to impose remedies that

compel one of the parties to the disfavored contract to pay

money to the other. I cannot see how those incentives could

be much other than a complete wash.

For the reasons set forth above, I respectfully dissent.

Ginsburg, Circuit Judge, dissenting: I join Judge Sen-

telle's dissent insofar as he demonstrates that in Sure-Tan,

Inc. v. NLRB, 467 U.S. 883 (1984), "the Supreme Court has

definitively answered the question before us." Dissent at 3.

The court today simply cannot convincingly evade the High

Court's clear statement that "in computing backpay, the

employees must be deemed 'unavailable' for work (and the

accrual of back pay therefore tolled) during any period when

they were not lawfully entitled to be present and employed in

the United States." 467 U.S. at 903.

Because I believe that Sure-Tan is controlling, I do not

think it necessary to reach the question whether the Board

reasonably reconciled the remedial scheme of the NLRA with

the policies embodied in the IRCA.

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